Professional Documents
Culture Documents
LAW REVIEW
VOL. V JANUARY, 1936 No. 1
and claim the same, which bond or bonds shall be full protec
tion to the administrator if such person does reappear and claim
the estate after distribution made thereof and that such admin
istrator shall assign such bond or bonds to the person so reap-
pearing and claiming the estate, after which the administrator
shall not be liable for any act done by him under and by virtue
of his office as administrator.
The presumption of death does not arise where the supposed
decedent has been heard from or there is reliable information
that he was alive within seven years.14 The primary burden is
of course on the person asserting that the absent person has not
been seen or heard from for seven years then last past succes
sively to produce evidence to sustain that assertion before the
presumption of death will arise.15 This evidence must disclose
that he has been absent from his last known residence for the
prescribed period and that all available sources of information
as to his whereabouts have been exhausted.16 Ordinarily the
evidence given by his family, relatives, friends and former asso-
ciates, together with inquiries made by them, will satisfy this
requirement as to evidence. But if a person, absenting himself,
has not been heard from in seven years last past successively,
the presumption of death arises at the end of that period17 and
a person seeking to rebut that presumption must show that the
person was alive or heard from within that seven year period
The burden of proof is then upon the person asserting a continu-
ance of life.18 Thus the case of Eoyt v. Newbold was brought
to recover possession of an undivided one-seventh of a lot of
land. The land had been owned by one Tuers who had seven
children and who died intestate. One of his children left home
in 1852 to go to California and was never seen or heard from
thereafter. By partition suit, this son's interest in the land was
set off to his children. Twenty-two years after this son's disap-
pearance, the plaintiff produced a deed signed by a person of
14
Spiltoir v. Spiltoir, 72 NJ.Eq. 50, 64 Atl. 96 (Ch. 1906).
15
17 CJ. 1174.
18
Armstrong v. Armstrong, 99 NJ.Eq. 19; 17 CJ. 1174; 132 Atl. 237
(Ch. 1926).
"Smith
18
v. Smith, 5 NJ.Eq. 484 (Ch. 1846).
Hoyt v. Newbold, 45 NJ.L. 219; 8 R.C.L. 708; 96 Am. St. Rep. 536;
46 A.R. 757 (N. J. Sup. Ct. 1883); Smith v. Smith, 5 NJ.Eq. 484 (Ch. 1846).
PRESUMPTION OF DEATH IN NEW JERSEY 7
the same name as the son who had disappeared. The court held
that the burden was on the plaintiif to prove that this son was
still alive and said :19
"The mere fact that deeds were signed in California
in 1874 by a person named Abraham A. Tuers, or using
that name, does not prove that such person was the son of
Abraham A. Tuers, Sr., or that he was then living or that
he signed the deed. There should be something more than
similarity of name to overcome the presumption of death
raised by the statute."
The court further stated that it would be necessary to prove
the identity of the one signing the deed, either by evidence of
those who knew him, or evidence giving a definite description
of him, or, at least, proof of his handwriting.
In some states the presence of a motive for disappearance
has some effect upon the presumption of death after seven years
absence. In New Jersey, our statutes make no reference to
motive for disappearance. It would therefore seem that the
only necessary proof is that the resident of the state has re-
mained beyond the seas, or absented himself from the state or
concealed himself within the state for seven years then last past
successively. The fact that he is a fugitive from justice, or has
had family or domestic difficulties, or has fled from the stigma
of some disgrace has no effect upon the presumption of death if
he has disappeared and not been heard from for the statutory
period of seven years.20
Our statute reads that there shall be a presumption of
death where a person, a resident of this state, "shall remain
beyond the seas, or absent himself or herself from this state or
conceal himself or herself in this state for seven years succes-
sively". The disjunctive wording of this statute was discussed
in the case of 0shorn v. Allen,21 where it was claimed that the
statute had altered the common law rule and made it necessary
19
45 N.J.L. 219, at p. 223.
"Mckert v. Prudential Ins. Co., 114 N J . L . 320, 176 Atl. 587 (E. & A.
1934).
a
Osborn v. Allen, 26 NJ.L. 388, 389.
8 MERCER BEASLEY LAW REVIEW
lead to other evidence showing the absentee was alive within the
seven year period or even at the time of the hearing. The
nature of the inquiry to determine the existence of the presump-
tion makes it necessary to admit into evidence a certain amount
of hearsay evidence,29 such as the result of personal inquiries
made, letters from third parties relating to having seen or heard
of or from the absentee and declarations of the missing person
made at or about the time of his disappearance,30 but efforts
should be made to confine the testimony as nearly as possible
within the rules of evidence relating to hearsay testimony.
Under our statutes, if the presumption of death be estab-
lished, the ordinary or the surrogate may appoint an admin-
istrator of the estate of the one presumed to be dead. The
duties of such an administrator are similar to> those of any
general administrator of an estate, except that in making dis-
tribution to those entitled by law to receive the estate of the
presumed dead person, he must take from each such beneficiary
a refunding bond, with good and sufficient sureties, conditioned
to refund to the administrator the share of the estate received,
plus accumulations thereof, in case the presumed dead person
reappears and claims the same. Such a bond gives to the ad-
ministrator full and complete protection but he shall assign such
bond to the returned absentee who claims his estate. If the
person presumed to be dead left a last will and testament at the
time of his disappearance, his will may be probated31 and his
estate distributed in accordance therewith but the executor
should also obtain the refunding bond which may be assigned
to the presumed dead person if he returns and claims the
estate.
In a considerable number of proceedings brought to estab-
lish the presumption of death, the purpose is to collect life
insurance upon the life of the absentee or presumed dead per-
son. A practice has developed in Essex County and a few other
counties to provide in the rule to show cause that a copy of the
order be served upon the insurance company which issued the
policy or policies in question. This practice has resulted, upon
M
30
17 C J . 1176.
31
State v. Hunter,40 NJ.L. 495 (E. & A. 1878).
In re Sternkopf's Will, 72 NJ.Eq. 356, 65 Atl. 177 (Prerog. 1906).
PRESUMPTION OF DEATH IN NEW JERSEY 11
38
Wambaugh v. Schenck, 2 NJ.L. 214 (N. J. Sup. C t 1807); Spiltoir v.
Spiltoir, 72 NJ.Eq. 50, 64 Atl. 96 (Ch. 1906).
39
2 N. J. COMP. STAT. (1910), sec. 52, p. 1762.
40
Spiltoir v. Spiltoir, 72 NJ.Eq. 50, 64 Atl. 96 (Ch. 1906); State v. Reilly,
88 NJ.L.
41
104, 95 Atl. 1005 (N. J. Sup. Ct. 1915).
42
Burkhardt v. Burkhardt, 63 NJ.Eq. 479, 52 Atl. 296 (Ch. 1902).
43
Burkhardt v. Burkhardt, 63 NJ.Eq. 479, 52 Atl. 296 (Ch. 1902).
Potter v. Ogden, 68 NJ.Eq. 409, 59 Atl. 673 (Ch. 1905)4
" 2 N. J. COMP. STAT. (1910), p. 1905.
PRESUMPTION OF DEATH IN NEW JERSEY 13
as to the facts and upon bond to the State for double the value
of the land conditioned that the proceeds, with interest, shall be
paid, upon demand, to the person presumed to be dead in case
he or she shall appear and claim it, may order the sale of such
lands and that thereafter the person presumed to be dead shall
be forever barred from any claim or title to the real estate and
entitled only to the proceeds thereof.
Sections 4 and 545 of the Death Act provide for the sale of
lands devised to or inherited by persons presumed to be dead,
the procedure for such a sale being specified. Likewise Section
6 of the Death Act46 and the supplement thereto enacted in
192747 provides for the sale of lands free from the rights of
dower or curtesy of one who is presumed to be dead. Distribu-
tion of personal property given or bequeathed to one presumed
to be dead may be made in accordance with the provisions and
procedure specifically outlined in Section 3 of the Death Act ;48
under this section those entitled to take in the case of actual
death may receive the gift to the one presumed to be dead, upon
giving to the executor, administrator or trustee a refunding
bond or bonds, without sureties.
PRESUMPTION AS TO SURVIVORSHIP
There are instances where two or more persons are lost as
the result of a common accident or catastrophe, and no evidence
is available as to which of them survived the other. In these
cases, it may be important to try to ascertain which died first,
in order to determine the rights of descent or distribution. In
a few jurisdictions, and at civil law, presumptions of survivor-
ship arose, based upon the sex, age and strength of those who
perished.49 Thus far there has been no reported case in New
Jersey relative to a presumption in such cases nor is there any
statute pertinent to this situation. However, the general rule is
that, where there is no evidence as to which person survived, no
presumption of survivorship arises and the situation is consid-
"Mogna v. Prudential Ins. Co., 96 NJ.Eq. 293, 125 Atl. 99 (E. & A. 1924).